Legal Momentum, ACLU Et Al Amicus Brief in HCAA v. Weil 2-27-15
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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________________________________
HOME CARE ASSOCIATION OF AMERICA;
INTERNATIONAL FRANCHISE ASSOCIATION;
NATIONAL ASSOCIATION FOR
HOME CARE & HOSPICE,
Plaintiffs-Appellees,
v. No. 15-5018
DAVID WEIL,
Administrator of the Wage and Hour Division,U.S. DEPARTMENT OF LABOR;
THOMAS E. PEREZ, Secretary of Labor;
U.S. DEPARTMENT OF LABOR,
Defendants-Appellants.
_____________________________________________
MOTION OF WOMEN’S RIGHTS, CIVIL RIGHTS, AND HUMAN
RIGHTS ORGANIZATIONS AND SCHOLARS
FOR LEAVE TO FILE A MEMORANDUM AS AMICI CURIAE
The American Civil Liberties Union of the Nation’s Capital, on behalf of
amici curiae women’s rights, civil rights, and human rights organizations and
scholars, hereby moves for leave to file the attached brief, as amicus curiae, in
support of Defendants-Appellants in this matter pursuant to Federal Rule of
Appellate Procedure 29.
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A. Consent
Defendants-Appellants consent to this motion. Plaintiffs-Appellees “consent
to the filing of an amici brief by the organization(s) [amici] represent, provided
that [amici] will be complying with the single brief requirement of Circuit rule
29(d).” Plaintiffs-Appellees “do not consent to separate briefs by the organizations
that have requested to file amici briefs.”
B. Interest of Amici
Amici are women’s rights, civil rights, and human rights organizations and
scholars who have long advocated in the courts and in the legislatures for equality
of treatment and dignity for women workers and for the employment rights of
immigrants and people of color. Amici support the Department of Labor’s
regulations because they remedy a historic wrong — the exclusion of
predominantly low-income, minority women domestic long-term care workers
from the basic labor protections that other workers take for granted. Many of
amici submitted comments in support of the regulations at issue in this case.
Individual statements of the interests of amici can be found in an Appendix to this
brief.
C. Authorship and Funding
Pursuant to Federal Rule of Appellate Procedure 29(c)(5), amici certify that
this brief was authored by amici and counsel listed in the brief. No party or party’s
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counsel authored this brief, in whole or in part. No party or party’s counsel
contributed money that was intended to fund preparing or submitting this brief. No
other person besides amici and their counsel contributed money that was intended
to fund preparing or submitting this brief.
D. Not Practical to Join in Single Brief
Amici propose to file a brief on behalf of women’s rights, civil rights, and
human rights organizations and scholars explaining the history of sex stereotypes
and legacy of racial bias in the 1938 FLSA that Congress and the Department of
Labor intended to correct through the 1974 FLSA Amendments and 2013
regulations. These are not the issues that the parties or other amici in support of
Defendants-Appellants seek to highlight. Upon information and belief, following
coordination among the parties to ensure lack of duplication and overlap, other
parties will address separate topics, including whether the proposed regulations are
likely to lead to increased institutionalization; how the proposed regulations affect
older care recipients and their family caregivers as well as the disproportionate
number of home care workers who are themselves older; changes in the home care
industry since the 1970’s and the impact that labor shortages and high turnover
have on patient care; how the proposed regulations will affect persons with
disabilities; and other issues not addressed by the brief amici submit. There would
be no efficiencies or synergies gained by addressing these issues in a joint brief.
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In addition, amici do not have expertise in some of the areas the other amici
intend to brief. Because the issues raised in this brief are not adequately addressed
in the other briefings, and because the issues raised in our brief merit
consideration, amici respectfully propose to submit this separate brief.
Conclusion
For the foregoing reasons, amici’s motion should be granted.
Respectfully submitted,
Arthur B. Spitzer
Arthur B. Spitzer
American Civil Liberties Union
of the Nation’s Capital
4301 Connecticut Avenue, N.W., Suite 434
Washington, DC 20008
Telephone: (202) 457-0800
Facsimile: (202) 457-0805
February 27, 2015
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to Circuit Rule 28.1, Amici certify the following:
A. Parties Appearing Before the District Court
All parties are listed in the Brief for Defendants-Appellants. There were no
amici in district court. Amici filing this brief are the American Civil Liberties
Union, ACLU of the Nation’s Capital, Legal Momentum, Asian American Legal
Defense and Education Fund, Eileen Boris, Jennifer Klein, Health and Human
Rights Clinic at Indiana University McKinney School of Law, LATINOJUSTICE
PRLDEF, National Center for Law and Economic Justice, National Council of La
Raza, National Hispanic Leadership Agenda, National Women’s Law Center,
Northwest Arkansas Workers’ Justice Center, Santa Clara University School of
Law International Human Rights Clinic, US Human Rights Network, National
Law Center on Homelessness and Poverty, Latina/Latino Critical Legal Theory,
Inc., Frank Askin, Karl Klare, William P. Quigley, and Deborah M. Weissman.
There may be additional amici of which we are unaware.
B. Rulings Under Review
The government has appealed the December 22, 2014 opinion and order
vacating the third-party employment regulation, 29 C.F.R. § 552.109 (Dkt. ## 21,
22), and the January 14, 2015 opinion and order vacating the companionship
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services regulation, 29 C.F.R. § 552.6 (Dkt. ## 32, 33). The rulings were issued by
the Honorable Richard J. Leon in No. 1:14-cv-00967-RJL (D.D.C.).
C. Related Cases
Counsel are not aware of any pending related cases.
/s/ Arthur B. Spitzer
Arthur B. Spitzer
American Civil Liberties Union
of the Nation’s Capital
4301 Connecticut Avenue, N.W., Suite
434Washington, DC 20008
Telephone: (202) 457-0800
Facsimile: (202) 457-0805
February 27, 2015
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'
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1,
counsel makes the following disclosure:
None of the Amici is a publicly held entity. None of the Amici is a parent,
subsidiary, or affiliate of, or a trade association representing, a publicly held
corporation, or other publicly held entity. No parent companies or publicly
held companies have any ownership in any of the Amici.
/s/ Arthur B. Spitzer
Arthur B. Spitzer
American Civil Liberties Union
of the Nation’s Capital
4301 Connecticut Avenue, N.W.,
Suite 434
Washington, DC 20008
Telephone: (202) 457-0800
Facsimile: (202) 457-0805
February 27, 2015
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(
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Motion and attached Brief of Amici
Curiae were filed upon counsel for Plaintiffs-Appellees and Defendants-Appellants
via this Court’s electronic filing system on this 27th day of February 2015.
By: /s/ Arthur B. Spitzer
Arthur B. Spitzer
American Civil Liberties Union
of the Nation’s Capital
4301 Connecticut Avenue, N.W.,
Suite 434Washington, DC 20008
Telephone: (202) 457-0800
Facsimile: (202) 457-0805
February 27, 2015
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NO. 15-5018
[NOT SCHEDULED FOR ORAL ARGUMENT]
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
HOME CARE ASSOCIATION OF AMERICA; INTERNATIONALFRANCHISE ASSOCIATION; NATIONAL ASSOCIATION FOR HOME CARE
& HOSPICE, Plaintiffs-Appellees,
v.
DAVID WEIL, Administrator of the Wage and Hour Division, U.S. Department of
Labor; THOMAS E. PEREZ, Secretary of Labor; U.S. DEPARTMENT OFLABOR, Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA
(No. 14-cv-967) (Hon. Richard J. Leon)
BRIEF OF WOMEN’S RIGHTS, CIVIL RIGHTS, AND HUMAN RIGHTS
ORGANIZATIONS AND SCHOLARS AS AMICI CURIAE IN SUPPORT
OF DEFENDANTS-APPELLANTS SEEKING REVERSAL
Ariela MigdalLenora LapidusAmerican Civil Liberties UnionFoundationWomen’s Rights Project125 Broad Street, 18th Floor
New York, NY 10004Tel. (212) 549-2668
Counsel for Amici Curiae
Date: February 27, 2015
Penny M. VenetisChristina Brandt-YoungLegal Momentum5 Hanover Square Ste. 1502
New York, NY 10004Tel. (212) [email protected]
Arthur B. SpitzerAmerican Civil Liberties Union of the Nation's Capital4301 Connecticut Avenue, N.W., Suite 434Washington, D.C. 20008Tel. (202) [email protected]
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
PURSUANT TO CIRCUIT RULE 28(a)(1)
Pursuant to D.C. Circuit Rule 28(a)(1), undersigned counsel certifies as
follows:
A. Parties and Amici
All parties are listed in the Brief for Defendants-appellants. There were no
amici in the district court. Amici filing this brief are the American Civil Liberties
Union, ACLU of the Nation’s Capital, Legal Momentum, Asian American Legal
Defense and Education Fund, Eileen Boris, Jennifer Klein, Health and Human
Rights Clinic at Indiana University McKinney School of Law, LATINOJUSTICE
PRLDEF, National Center for Law and Economic Justice, National Council of La
Raza, National Hispanic Leadership Agenda, National Women’s Law Center,
Northwest Arkansas Workers' Justice Center, Santa Clara University School of
Law International Human Rights Clinic, US Human Rights Network, Latina/Latino
Critical Legal Theory, Inc., Frank Askin, Karl Klare, William P. Quigley, and
Deborah M. Weissman.
There may be additional amici of which we are unaware.
i
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B. Rulings Under Review
References to the rulings at issue appear in the brief for Defendants-
appellants.
C.
Related Cases
Counsel is unaware of any pending related cases.
/s/ Arthur B. Spitzer
Arthur B. Spitzer
Counsel for amici curiae
ii
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1,
counsel makes the following disclosure:
None of the Amici is a publicly held entity. None of the Amici is a parent,
subsidiary, or affiliate of, or a trade association representing, a publicly held
corporation, or other publicly held entity. No parent company or publicly held
company has any ownership in any of the Amici.
/s/ Arthur B. Spitzer Arthur B. Spitzer
American Civil Liberties Union
of the Nation's Capital
4301 Connecticut Avenue, N.W.,
Suite 434
Washington, D.C. 20008
Tel. (202) 457-0800
Counsel for Amici Curiae
iii
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COMPLIANCE WITH RULE 29
This brief is submitted pursuant to Federal Rule of Appellate Procedure 29
and District of Columbia Circuit Rule 29.
A.
Consent to File
Pursuant to Fed. R. App. P. 29(a) and Circuit Rule 29(b), amici certify that
Defendants-Appellants consent to the filing of this brief. Plaintiffs-Appellees
“consent to the filing of an amici brief by the organization(s) [amici] represent,
provided that [amici] will be complying with the single brief requirement of
Circuit rule 29(d).” Plaintiffs-Appellees “do not consent to separate briefs by the
organizations that have requested to file amici briefs.” For this reason, this brief is
accompanied by a Motion for Leave to file the instant brief.
B. Authorship and Funding
Pursuant to Fed. R. App. P. 29(c)(5), amici certify that this brief was
authored by counsel for amici curiae listed on the front cover. No party or party’s
counsel authored this brief in whole or in part. No party or party’s counsel
contributed money that was intended to fund the preparation or submission of this
brief. No person other than amici and their counsel contributed money that was
intended to fund the preparation or submission of this brief.
iv
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C. Not Practical to Join in Single Brief
Pursuant to Circuit Rule 29(d), amici certify that it is not practicable to join
all other amici in this case in a single brief. Pursuant to Circuit Rule 29(d),
undersigned counsel for amici curiae women’s rights, civil rights, and human
rights organizations and scholars certify that a separate brief is necessary. Amici
seek to address the history of sex stereotypes and legacy of racial bias in the 1938
FLSA that Congress and the Department of Labor intended to correct through the
1974 FLSA Amendments and 2013 regulations. These are not the issues that the
parties or other amici in support of Defendants-Appellants seek to highlight. Upon
information and belief, following coordination among the parties to ensure lack of
duplication and overlap, other parties will address separate topics, including
whether the proposed regulations are likely to lead to increased institutionalization;
how the proposed regulations affect older care recipients and their family
caregivers as well as the disproportionate number of home care workers who are
themselves older; changes in the home care industry since the 1970’s and the
impact that labor shortages and high turnover have on patient care; how the
proposed regulations will affect persons with disabilities; and other issues not
addressed by the brief amici submit. There would be no efficiencies or synergies
gained by addressing these issues in a joint brief.
v
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In addition, amici do not have expertise in some of the areas the other amici
intend to brief. Because the issues raised in this brief are not adequately addressed
in the other briefings, and because the issues raised in our brief merit
consideration, amici respectfully submit this separate brief.
Dated: February 27, 2015
/s/ Arthur B. Spitzer
Arthur B. Spitzer
Counsel for amici curiae
vi
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TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE ……………………………………………… 1
STATEMENT OF THE CASE………………………………………………….1
SUMMARY OF ARGUMENT………………………………………………….1
ARGUMENT…………………………………………………………………….3
I. FOR MORE THAN FORTY YEARS, CONGRESS HAS MADE EFFORTSTO CORRECT GENDER AND RACIAL BIAS IN THE FLSA THAT LEFTWOMEN AND PEOPLE OF COLOR WITHOUT PROTECTIONSAFFORDED TO OTHER WORKERS. .........................................................3
A. Gender Stereotypes and Racial Biases Underlie Long-Held Assumptionsthat Domestic Caregiving Work is Unworthy of Labor Law Protections.4
B. The 1938 Fair Labor Standards Act Codified Racial and Gender Biases ina Legal Regime that Undervalued the Labor of Paid Caregivers…….…..8
II. CONGRESS AMENDED THE FLSA IN 1961, 1966, AND 1974 WITHTHE INTENTION OF COVERING THE FEMALE DOMESTIC WORKERSORIGINALLY EXCLUDED BY THE STATUTE. ................................... 12
A. The 1961 and 1966 Amendments to the FLSA Reflected Congress’s Intentto Properly Compensate Caregiver Working in Institutional Settings. 12
B. Congress’s 1974 FLSA Amendments Remedied Historic Discrimination
by Bringing All But “Casual” Domestic Workers into the EconomicMainstream. ........................................................................................... 13
III. THE 2013 REGULATIONS FURTHER THE PURPOSES OF THE 1974FLSA AMENDMENTS TO EXTEND WAGE PROTECTIONS TOWORKERS WHO PROVIDE LONG-TERM CARE FOR A LIVING, WHOREMAIN PRIMARILY WOMEN — DISPROPORTIONATELY WOMENOF COLOR. ................................................................................................. 20
A. The 2013 Regulations Apply FLSA to Modern Realities in which a Largeand Growing Client Population is Most Often Cared for at Home. ..... 22
B. The 2013 Regulations Were Intended to Remedy Racial and Gender Biasand Cover Home Care Workers, Who Remain DisproportionatelyMinority, Low-Income Women Who Provide Long-Term Care for aLiving. ................................................................................................... 24
CONCLUSION……………………………………………………………….. 28
vii
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TABLE OF AUTHORITIES
Cases
Coleman v. Court of Appeals of Maryland ,
132 S. Ct. 1327 (2012) ............................................................................................5
Frontiero v. Richardson,
411 U.S. 677 (1973) ................................................................................................8
Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) ....................................................................................... 19, 20
Mississippi Univ. for Women v. Hogan,
458 U.S. 718 (1982) ................................................................................................8
Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721 (2003) ................................................................................................5
Olmstead v. L. C. ex rel. Zimring,
527 U.S. 581 (1999) ..............................................................................................22
Statutes
28 C.F.R. §35.130(d) (1998) ....................................................................................22
Fair Labor Standards Act of 1938,
52 Stat. 1060 (codified as amended at 29 U.S.C. § 203(b)(2006) ..........................9
Fair Labor Standards Act of 1938,
52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 206-207(2007)) .................... 9
viii
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Fair Labor Standards Act of 1938, 52 Stat. at 1067 § 13(a)(6) (codified as amended
at 29 U.S.C. § 213(a)(6)(2014)) ..............................................................................9
Fair Labor Standards Amendments of 1961,
Pub. L. No. 87-30, 75 Stat. 65 (codified as amended at 29 U.S.C. § 203(r), (s)
(2006) ....................................................................................................................12
Fair Labor Standards Amendments of 1966,
Pub. L. No. 89-601, 80 Stat. 830, 831 (1966) (codified as amended at 29 U.S.C.
§ 203(r), (s)(2006)) ........................................................................................ 12, 13
Fair Labor Standards Amendments of 1974,Pub. L. No. 93-259, § 7(a), 88 Stat. 62 (codified as amended at 29 U.S.C. §
202(a)(2014)) ........................................................................................... 13, 14, 15
National Labor Relations Act of 1935,
49 Stat. 449 (1935)(codified at 29 U.S.C. §§ 151-169(2014) ..............................11
Social Security Act of 1935,
Pub. L. No. 92-603, 49 Stat. 620 (codified as amended at 42 U.S.C. §§ 1381-
1385 (2013) ...........................................................................................................11
Other Authorities
Terri Nilliasca, Note, Some Women’s Work: Domestic Work, Class, Race,
Heteropatriarchy, and the Limits of Legal Reform,
16 Mich. J. Race & L. 377 (Spring 2011) ..............................................................8
119 Cong. Rec. 18,341
(1973) (statement of Rep. Griffiths) .....................................................................19
ix
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119 Cong. Rec. S24799
(daily ed. July 19, 1973) (statement of Sen. Williams) ........................................19
119 Cong. Rec. S24801
(July 19, 1973) (statement of Sen. Burdick) .........................................................20
39-9021: Personal Care Aides, http://www.bls.gov/oes/current/oes399021.htm ....33
Andrew I. Batavia, A Right to Personal Assistance Services: “Most Integrated
Setting Appropriate” Requirements and the Independent Living Model of Long-
Term Care,
27 Am. J. L. & Med. 17 (2001) ............................................................................28
*Application of the Fair Labor Standards Act to Domestic Service,
40 Fed. Reg. 7404 (Feb. 20, 1975) (codified as amended at 29 C.F.R. Part 552)
................................................................................................ 21, 22, 23, 26, 27, 29
Eileen Boris & Jennifer Klein, “Making Home Care: Law and Social Policy in the
U.S. Welfare State,”
in Intimate Labors: Cultures, Technologies, and the Politics of Care (Eileen
Boris & Rhacel Salazar Parrenas eds., 2010) .......................................................21
Daniela Kraiem, Consumer Direction in Medicaid Long Term Care: Autonomy,
Commodification of Family Labor, and Community Resilience,
19 Am. U. J. Gender, Soc. Pol’y & L. 671 (2011) .............................................7, 9
Dianne Avery & Martha T. McCluskey, When Caring is Work: Home, Health, andthe Invisible Workforce Introduction,
61 Buff. L. Rev. 253 (2013)..................................................................................25
x
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Eileen Boris & Jennifer Klein,
Caring for America: Home Health Workers in the Shadow of the Welfare State
ch. 5 (2012) .................................................................................................. 8, 9, 21
Eileen Boris & Jennifer Klein, Frontline Caregivers: Still Struggling,
Dissent vol. 59, no. 1, 46 (Winter 2012) ....................................................... 35, 37
Eileen Boris & Jennifer Klein, Organizing Home Care: Low-Waged Workers in
the Welfare State,
Politics & Soc’y vol. 34, No. 1, 81 (March 2006) ......................................... 12, 21
Ellen Mutari, Brothers and Breadwinners: Legislating Living Wages in the Fair Labor Standards Act of 1938 ,
62 Rev. of Soc. Econ. 129 (2004) .........................................................................10
Evelyn Nakano Glenn, From Servitude to Service Work: Historical Continuities in
the Racial Division of Paid Reproductive Labor , Signs vol. 18, no. 1 (Fall 1992),
available at http://www.jstor.org/stable/3174725 ..................................................5
Galina Khatustsky, et al., U.S. Dep’t of Health and Human Services,
Understanding Direct Care Workers: A Snapshot of Two of America’s Most
Important Jobs (2011), available at
http://aspe.hhs.gov/daltcp/reports/2011/CNAchart.pdf ........................................32
*H.R. Rep. No. 93-913 (1974),
reprinted in 1974 U.S.C.C.A.N. 2811 ................................................. 4, 18, 20, 23
Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the
Agricultural and Domestic Worker Exclusion from the National Labor Relations
Act ,
72 Ohio St. L.J. 95 (2011) ................................................................................3, 14
xi
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Laura B. Shrestha, Congressional Research Service, The Changing Demographic
Profile of the United States (2006), available at
https://www.fas.org/sgp/crs/misc/RL32701.pdf (last visited Feb. 23, 2015) 29, 30
Lenora Gilbert, Home Care Workers: The New York City Experience,
Encyclopedia of Occupational Safety and Health,
vol. 3 (4th ed. International Labor Organization 1998) .........................................36
Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial
Discrimination in the New Deal,
65 Tex. L. Rev. 1335 (1987) .................................................................................13
Nat’l Council of La Raza, Hispanic Home Care Workers,
Monthly Latino Emp’t Rep. (July 8, 2013), available at
http://www.nclr.org/images/uploads/publications/july2013_employmentreport_h
omecareworkers.pdf ................................................................................. 30, 32, 34
Nat’l Women’s Law Center calculations based on U.S. Census Bureau, 2013
American Community Survey, analyzed using Steven Ruggles et al., Integrated
Public Use Microdata Series: Version 5.0 [Machine-readable database](Minneapolis: Univ. of Minnesota, 2010) ..................................................... 32, 34
Paraprofessional Healthcare Institute, Who are Direct-Care Workers?
Facts no. 3, at 3 (Feb. 2011), available at
www.directcareclearinghouse.org/download/NCDCW%20Fact%20Sheet-1.pdf.
...............................................................................................................................34
*Peggie R. Smith, Aging and Caring in the Home: Regulating Paid Domesticity in
the Twenty-First Century,
92 Iowa L. Rev. 1835 (2007) ............................................................... 4, 14, 28, 30
xii
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Peggie R. Smith, Work Like Any Other, Work Like No Other: Establishing Decent
Work for Domestic Workers,
15 Emp. Rts. & Emp Pol’y J. 159 (2011) .............................................................37
Peggie Smith, Regulating Paid Household Work: Class, Gender, Race, and
Agendas of Reform,
48 Am. U. L. Rev. 851 (1999) ....................................................................... 13, 14
Phyllis Palmer, Outside the Law: Agricultural Workers and Domestic Workers
Under the Fair Labor Standards Act ,
J. of Pol’y Hist., vol. 7, no. 4, 419-440 (1995) .....................................................18
Roy L. Brooks, American Democracy and Higher Education for Black Americans:
The Lingering-Effects Theory,
7 J. L. & Soc. Challenges 1 (2005) .....................................................................7, 8
S. Rep. No. 93-690 (1974) ............................................................................ 4, 20, 23
Sarah Jane Glynn, The New Breadwinners: 2010 Update,
Center for American Progress(April 2012), http://cdn.americanprogress.org/wp-
content/uploads/issues/ 2012/04/pdf/breadwinners.pdf .......................................36
Scott Martelle, Confronting the Gloves-Off Economy
(Annette Bernhardt et al. eds., 2009), available at
http://nelp.3cdn.net/0f16d12cb9c05e6aa4_bvm6i2w2o.pdf. ...............................31
U.S. Bureau of Labor Statistics, “Employed persons by detailed occupation, sex,race, and Hispanic or Latino ethnicity, 2012 Annual Averages,”
Current Population Survey, http://www.bls.gov/cps/cpsaat11.htm .....................31
U.S. Dep’t of Health & Human Services,
2013 Federal Poverty Guidelines, http://aspe.hhs.gov/poverty/13poverty.cfm ...33
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U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Employment &
Wages, May 2013,
31-1011: Home Health Aides, http://www.bls.gov/oes/current/oes311011.htm
...............................................................................................................................33
William P. Quigley, ‘A Fair Day's Pay For a Fair Day's Work’: Time to Raise
and Index the Minimum Wage,
27 St. Mary's L. J. 513 (1996) ..............................................................................12
Regulations
Employment of Domestic Service Employees,
39 Fed. Reg. 35,382-85 (proposed Oct. 1, 1974) .................................................19
76 Fed. Reg. No. 81,190, 81,197 (Dec. 27, 2011) ...................................................27
Extension to Domestic Service Employees,
40 Fed. Reg. 7404 (proposed February 20, 1975) (codified as amended at 29
C.F.R. § 552.109 (2015) .......................................................................................19
* Authorities upon which we chiefly rely are marked with asterisks.
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GLOSSARY
FLSA: Fair Labor Standards Act
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INTERESTS OF AMICI CURIAE
Amici are women’s rights, civil rights, and human rights organizations and
scholars who have advocated for equality of treatment and dignity for women
workers and for the employment rights of immigrants and people of color. Amici
support the Department of Labor’s regulations, because they remedy a historic
wrong — the exclusion of predominantly low-income, minority women domestic
long-term care workers from the basic labor protections that other workers take for
granted. Many of amici submitted comments in support of the regulations at issue
in this case. Individual statements of the interests of amici can be found in the
Appendix.
STATEMENT OF THE CASE
Amici adopt the Defendants-Appellants’ Statement of the Case.
SUMMARY OF ARGUMENT
The Department of Labor regulations at issue remedy a discriminatory gap
in our wages and hours law that has persisted for decades: the exclusion of long-
term care domestic workers. This exclusion embodied historically prevalent
gender stereotypes about the value of caregiving work performed primarily by
women inside people’s homes. It also codified the legacy of slavery, in which
African-American women served as domestic workers. And it maintained the
racially biased legacy of the New Deal era, when African-American and immigrant
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workers were excluded from new federal labor protections, including the Fair
Labor Standards Act (hereinafter FLSA).
For more than forty years, Congress has attempted to close these shameful
gaps and bring domestic workers into the economic mainstream. In the 1960s,
Congress amended the FLSA to provide protections to the women who provided
long-term care to people in institutions, and in the 1970s, it amended the statute
again to cover all but “casual” domestic workers. Congress’s objective,
particularly in amending the FLSA in 1974, was to eradicate the racially biased
exclusions that left out women of color who provided most domestic service.
However, the regulations issued in the wake of these amendments still were
interpreted to leave out many workers who provided long-term care as their
vocation.
With its 2013 regulations, the Department of Labor finally closed the
remaining loopholes and brought long-term care workers within the wage and
overtime protections of the FLSA. In doing so, the Department fulfilled
Congress’s goal of rectifying the legacy of race and sex discrimination that had
excluded these workers from the protections of the Fair Labor Standards Act. The
workers affected by the 2013 rule remain overwhelmingly women, predominantly
women of color and immigrant women. They still toil in physically and
emotionally demanding caregiving jobs for low wages. Many of those who require
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long-term care now receive it at home, in contrast to the 1960s where
institutionalization was an accepted norm. Thus, in addition to remedying historic
race and sex biases in accordance with Congress’s goals, the 2013 regulations
recognize the realities of the modern home care industry, and ensure that the
women typically providing the care are paid fairly.
For these reasons, amici respectfully ask this Court to uphold the 2013
regulations as a lawful and logical exercise of the Department of Labor’s powers.
ARGUMENT
I. FOR MORE THAN FORTY YEARS, CONGRESS HAS MADE
EFFORTS TO CORRECT GENDER AND RACIAL BIAS IN THE
FLSA THAT LEFT WOMEN AND PEOPLE OF COLOR WITHOUT
PROTECTIONS AFFORDED TO OTHER WORKERS.
It has been well documented that the 1938 Fair Labor Standards Act and its
accompanying regulations codified a legal legacy of racial and gender
discrimination. See, e.g., Juan F. Perea, The Echoes of Slavery: Recognizing the
Racist Origins of the Agricultural and Domestic Worker Exclusion from the
National Labor Relations Act , 72 Ohio St. L.J. 95, 100-03, 114-17 (2011)
(collecting scholarship); Peggie R. Smith, Aging and Caring in the Home:
Regulating Paid Domesticity in the Twenty-First Century, 92 Iowa L. Rev. 1835,
1857 & nn. 108-109 (2007) (same). Sex stereotypes and a legacy of racial bias led
our laws to treat domestic work as outside the realm of breadwinning and
undeserving of the protection that “real” workers receive. See infra Part I.A.
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When federal labor laws were enacted as part of the New Deal, Congress excluded
agricultural workers, who were primarily African-American and immigrants, and
domestic workers, who were, and remain, primarily women and disproportionately
women of color and immigrants. See infra Part I.B.
Congress tried to remedy this blatant exclusion of full-time workers by the
1974 Amendments to the FLSA. Congress sought to include within the coverage
of the Act “all employees whose vocation is domestic service.” H.R. Rep. No. 93-
913, at 36; S. Rep. No. 93-690, at 20 (1974). In 1974, the only workers Congress
intended to be excluded were “not regular bread-winners or responsible for their
families’ support.” H.R. Rep. No. 93-913, at 36; S. Rep. No. 93-690, at 20 (1974).
Unfortunately, the Department of Labor’s 1975 regulations did not take this
legislative history into account. In the 2013 regulations at issue, the Department of
Labor has taken action to effectuate Congress’s goal in 1974 of remedying its past
race and sex-based discrimination. The 2013 regulations finally acknowledge that
domestic workers — including those who provide in-home long-term care — must
be treated the same as other full-time breadwinners and receive minimum wages
and overtime for their work.
A. Gender Stereotypes and Racial Biases Underlie Long-Held
Assumptions that Domestic Caregiving Work is Unworthy of Labor
Law Protections.
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The low value traditionally placed on women’s caregiving labor, including
the lack of formal legal protections, is rooted in sex stereotypes about domestic
work and in the legacy of slavery and Jim Crow. The domestic care provided by
women of color, to other peoples’ families, has historically been devalued and
excluded from labor protections. See infra Part I.B. This exclusion is based on
gendered norms about the intimacy of care provided within the home, and on
racialized notions about the rights of employers to determine the wages of
domestic workers. See Evelyn Nakano Glenn, From Servitude to Service Work:
Historical Continuities in the Racial Division of Paid Reproductive Labor 2, 3, 6,
16-18, 32-33, Signs vol. 18, no. 1 (Fall 1992), available at
http://www.jstor.org/stable/3174725.
The Supreme Court has repeatedly discussed the “pervasive sex-role
stereotype” that regards caregiving for family members as “women’s work” that
need not be compensated. This stereotype has shaped our national consciousness.
See Coleman v. Court of Appeals of Maryland , 132 S. Ct. 1327, 1334 (2012)
(quoting Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 731 (2003)); see
infra for a discussion of how the Supreme Court has also invalidated laws that rely
on these stereotypes. It informed the “perception that domestic work,” even when
performed outside of one’s own family, “was temporary, easy, and less dangerous
than other types of female employment, especially for white women who worked
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only until marriage.” Domestic work was considered “safely inside the private
sphere of the household, rather than in the rough and tumble public sphere of the
market.” Daniela Kraiem, Consumer Direction in Medicaid Long Term Care:
Autonomy, Commodification of Family Labor, and Community Resilience, 19 Am.
U. J. Gender, Soc. Pol’y & L. 671, 686 (2011).
Intersecting racial biases led women of color performing domestic labor in
white households to be “perceived as too far outside of the regularized workforce
to merit full labor and employment protection.” Id. This view of Black women’s
domestic labor is a legacy of the role of Black women as domestic slaves caring for
white families. Following slavery and emancipation, the Jim Crow era was
characterized by repression in which “[w]hole industries and categories of the best-
paying jobs were reserved for whites.” Roy L. Brooks, American Democracy and
Higher Education for Black Americans: The Lingering-Effects Theory, 7 J. L. &
Soc. Challenges 1, 17-18 (2005). “Jim Crow forced the former slaves and their
descendants, who had little or no resources to begin with, into the worst jobs,” and
“‘African Americans, even if they were college-educated, worked as bellboys,
porters and domestics.’” Id. at 17-18 & n.61 (2005) (quoting Affirmative Action:
History and Rationale, at http://
www.whitehouse.gov/WH/EOP/OP/html/aa02.html (available June 22, 1999)).
“Domestic service was part of the racial caste system,” and “the racist stereotype
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of Mammy is the quintessential embodiment of the ideal of the Black woman in
service to” white households at the expense of her own family. Terri Nilliasca,
Note, Some Women’s Work: Domestic Work, Class, Race, Heteropatriarchy, and
the Limits of Legal Reform, 16 Mich. J. Race & L. 377, 394 (Spring 2011).
Home care originated as a distinct occupation in New Deal relief measures
for unemployed Black domestic workers. These measures built upon family
welfare programs in which a caregiver would be sent into a home when the mother
was absent. See generally Eileen Boris & Jennifer Klein, Caring for America:
Home Health Workers in the Shadow of the Welfare State 4-18, 22-39 (2012).
Later such visiting housekeeping services were provided to people with disabilities
and elderly people. Id.
Long-term home care workers have been excluded from labor protections as
a result of these intersecting forms of bias and the discriminatory treatment
accorded Black domestic workers.
Racially-coded gender stereotypes play a strong role in keepingwages low and working conditions poor. As a subset of domesticworkers, long term care workers suffer from being too far insidethe private (feminine) sphere to be regulated. Long term care work… is not perceived as productive work; it is not work that enriches
capital. Long term care workers perform “emotional work” that isunderpaid because, like in other female-dominated professionssuch as teaching or child care, the work is supposed to carry itsown rewards.
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Kraiem, Consumer Direction in Medicaid Long Term Care, supra, at 671, 685-86
(footnotes omitted).
The Supreme Court has made clear that the categorization of caregiving as
“women’s work” is no longer an acceptable ground for overt discrimination or
exclusion. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 729 (1982)
(invalidating a nursing school policy that excluded men, because such policies
“perpetuate the stereotyped view of nursing as an exclusively women’s job”).
Paternalistic attitudes towards women workers have been recognized as leading to
the unequal treatment of women. “Traditionally, such discrimination was
rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put
women, not on a pedestal, but in a cage.” Frontiero v. Richardson, 411 U.S. 677,
684 (1973) (requiring military to grant same employment benefits to dependents of
male and female workers). Yet this unequal treatment was deeply entrenched in
our legal regime, including our labor laws.
B. The 1938 Fair Labor Standards Act Codified Racial and Gender
Biases in a Legal Regime that Undervalued the Labor of Paid
Caregivers.
Although the FLSA “legitimated and institutionalized the idea that living
standards and workers’ needs matter in setting wages,” Ellen Mutari, Brothers and
Breadwinners: Legislating Living Wages in the Fair Labor Standards Act of 1938 ,
62 Rev. of Soc. Econ. 129 (2004), Congress excluded many low-wage workers
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from its safety net. Sections 6 and 7 of the FLSA created minimum wage and
overtime protections only for workers “engaged in commerce or in the production
of goods for commerce.” Fair Labor Standards Act of 1938, 52 Stat. 1060
(codified as amended at 29 U.S.C. §§ 206-207(2007)). “Commerce” was defined,
generally at the time and particularly in the FLSA, as “trade, commerce,
transportation, transmission, or communication among the several States or
between any State and any place outside thereof.” Fair Labor Standards Act of
1938, 52 Stat. 1060 (codified as amended at 29 U.S.C. § 203(b)(2006)). This
standard was interpreted for years to exclude domestic service workers, even
though the statute did not expressly exclude this work. Agricultural workers, on
the other hand, were excluded from these protections explicitly. Fair Labor
Standards Act of 1938, 52 Stat. at 1067 § 13(a)(6) (codified as amended at 29
U.S.C. § 213(a)(6)(2014)).
This exclusion of domestic service and agricultural workers from FLSA’s
minimum wage and overtime protections emerged from the gender and racial
biases described in Part I.A., supra. FLSA’s coverage only of workers engaged in
interstate commerce or the production of goods intended for interstate commerce
privileged traditionally male industrial production jobs. It left out predominantly
female occupations of the time, “including hotel workers, such as waitresses and
chambermaids, retail clerks performing customer service, and janitors and nurses
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in hospitals.” William P. Quigley, ‘A Fair Day's Pay For a Fair Day's Work’:
Time to Raise and Index the Minimum Wage, 27 St. Mary's L. J. 513, 533 (1996).
The exclusion of home care workers from the Fair Labor Standards Act was
part of this broader exclusion. Household work was viewed as personal, not part
of the commercial economy and, as such, “New Deal labor law refused to
recognize the home as a workplace.” Eileen Boris & Jennifer Klein, Organizing
Home Care: Low-Waged Workers in the Welfare State, Politics & Soc’y vol. 34,
No. 1, 81, 84 (March 2006). Even statutes protecting women workers in industrial
settings exempted domestic workers. See Peggie Smith, Regulating Paid
Household Work: Class, Gender, Race, and Agendas of Reform, 48 Am. U. L. Rev.
851, 853-55, 880-918 (1999).
The FLSA codified the system of protections for white workers and
exclusions of African-American workers that held sway in the New Deal era. In
the 1930’s, “half or more of the nation’s farms and farm population were in the
South,” and 55% of agricultural workers in the former Confederate states were
nonwhite. Marc Linder, Farm Workers and the Fair Labor Standards Act: Racial
Discrimination in the New Deal, 65 Tex. L. Rev. 1335, 1343-44 (1987).
Nationally, in 1930 almost half of all paid household workers were African-
American women. Smith, Regulating Paid Household Work , supra, at 915 n.392.
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In the 1930’s New Deal Congress, Southerners controlled most leadership
positions and more than half of committee chairmanships; they also voted as a
bloc. Perea, Echoes of Slavery, supra, at 102. These politicians maintained an
agenda of maintaining a cheap African-American labor supply, as well as
“preserving the status quo of white domination.” Smith, Aging and Caring in the
Home, supra, at 1857 ; Perea, Echoes of Slavery, supra, at 102, 104-05.
No legislation could pass without Southern support. So, even the earliest
versions of the FLSA excluded domestic and agricultural workers. Id. at 114.
Members of Congress stood during the FLSA debates to say that “you cannot
prescribe the same wages for the black man as for the white man” and “[y]ou
cannot put the Negro and the white man on the same basis and get away with it.”
Id. at 115-16. For the same reasons, agricultural and domestic service workers
were also excluded from coverage under the National Labor Relations Act and the
Social Security Act. National Labor Relations Act of 1935, 49 Stat. 449
(1935)(codified at 29 U.S.C. §§ 151-169(2014)); Social Security Act of 1935, Pub.
L. No. 92-603, 49 Stat. 620 (codified as amended at 42 U.S.C. §§ 1381-1385
(2013)). These exclusions of traditionally African-American sectors from labor
protections have no place in our laws and defy Congress’s more recent wishes to
remedy past discrimination and unfair exclusion from the FLSA.
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II. CONGRESS AMENDED THE FLSA IN 1961, 1966, AND 1974 WITH
THE INTENTION OF COVERING THE FEMALE DOMESTIC
WORKERS ORIGINALLY EXCLUDED BY THE STATUTE.
A. The 1961 and 1966 Amendments to the FLSA Reflected Congress’s
Intent to Properly Compensate Caregiver Working in Institutional
Settings.
After 1960, Congress and the Labor Department made ongoing efforts to
eliminate the legal structures in the FLSA that undervalued the caregiving work
typically performed by women. Congress first amended the statute to cover
women’s caregiving labor performed in institutions. In 1961 and 1966, it amended
the FLSA to require minimum wages and overtime for workers employed by
enterprises earning more than $500,000 per year. Fair Labor Standards
Amendments of 1961, Pub. L. No. 87-30, § 2, 75 Stat. 65, 65-66 (codified as
amended at 29 U.S.C. § 203(r), (s) (2006)); Fair Labor Standards Amendments of
1966, Pub. L. No. 89-601, § 102(a) and (c), 80 Stat. 830, 831 (1966) (codified as
amended at 29 U.S.C. § 203(r), (s)(2006)). The amendments sought to cover
employees working
in connection with the operation of a hospital, an institution primarilyengaged in the care of the sick, the aged, the mentally ill or defectivewho reside on the premises of such institution, a school for mentally
or physically handicapped or gifted children, a preschool, elementaryor secondary school, or an institution of higher education (regardlessof whether or not such hospital, institution, or school is operated for
profit or not for profit).
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Fair Labor Standards Amendments of 1966 § 102(a), 80 Stat. 830, 831 (1966)
(codified as amended at 29 U.S.C. § 203(r)(2)(A) (2006)).
Compared with the original 1938 FLSA, this amendment covered many
workers in predominantly female occupations. It granted minimum wages and
overtime to workers engaged in personal care of the sick, the aged, the mentally ill,
and children — whether at institutions, hospitals, or schools. The 1966
Amendment thereby elevated the status of personal care work to that of a proper
profession. This was a significant correction to the racist and sexist legacy
encoded in the 1938 statute, but domestic workers remained outside the statute’s
purview. Congress’s efforts to rectify gaps for women would continue in 1974.
B. Congress’s 1974 FLSA Amendments Remedied Historic
Discrimination by Bringing All But “Casual” Domestic Workers into
the Economic Mainstream.
In enacting the Fair Labor Standards Amendments of 1974 (1974
Amendments), Congress was so determined to rectify the 1938 omission of
domestic workers from the original FLSA that it took the unusual step of amending
its original legislative findings. Section 7(a) of the 1974 Amendments adds “[t]hat
Congress further finds that the employment of persons in domestic service in
households affects commerce.” Fair Labor Standards Amendments of 1974, Pub.
L. No. 93-259, § 7(a), 88 Stat. 62 (codified as amended at 29 U.S.C. §
202(a)(2014)). The 1974 Amendments specifically extended minimum wages and
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overtime to any employee employed in domestic service. Pub. L. No. 93-259, §
7(b), 88 Stat. 62 (codified as amended at 29 U.S.C. §§ 206(f), 207(l) (2014)).
The House of Representatives report accompanying introduction of this
legislation stated that its goal was to “improve the sorry image of household
employment.” H.R. Rep. No. 93-913, at 34 (1974), reprinted in 1974
U.S.C.C.A.N. 2811, 2843. The Committee’s view was that “[i]ncluding domestic
workers under the protection of the Act should help to raise the status and dignity
of this work.” Id . The report also included a letter signed by thirteen female
Members of Congress asking the House to remember that “[c]ontrary to popular
opinion, women work not for ‘pin money’ but because they have to. They are
either the head of the household or contribute substantially to their family’s
income.” Id. Congress thus sought to remedy the sexism encoded in the 1938 Act.
See generally Phyllis Palmer, Outside the Law: Agricultural Workers and
Domestic Workers Under the Fair Labor Standards Act , J. of Pol’y Hist., vol. 7,
no. 4, 419-440 (1995).
Congress also sought, in these 1974 Amendments, to eliminate the racially
biased exclusions that disadvantaged low-income women of color. Senator
Williams noted, “the plain fact is that private household domestic workers are
overwhelmingly female and members of minority groups,” and “in failing to cover
domestics under our basic wage and hour law we would be turning our backs on
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these people.” 119 Cong. Rec. S24799 (daily ed. July 19, 1973) (statement of Sen.
Williams). Remedying racial and gender discrimination and achieving equity was
foremost in legislators’ minds. Senator Williams noted that
[t]wo-thirds of all household workers are black and of the remainingone-third, many are Chicanos, American Indians, or members of otherminority groups. They are called ‘girl’ and by their first names whilethey, themselves, must still address their employers and theiremployers’ children as “ma’am” or “sir” or “Miss Jane.”
Id.; see also 119 Cong. Rec. 18,341 (1973) (statement of Rep. Griffiths) (“Women,
especially black women, simply have not had a fair shake in the job market. It is
time they were given their due.”).
The 1974 Amendments exempted from wage and hour protections “any
employee employed on a casual basis in domestic service employment to provide
babysitting services or any employee employed in domestic service employment to
provide companionship services for individuals who (because of age or infirmity)
are unable to care for themselves.” Pub. L. No. 93-259, § 7(b)(3), 88 Stat. 62
(codified as amended at 29 U.S.C. § 213(a)(15) (2014)). The terms in this section
were to be “defined and delimited by regulations of the Secretary.”1 Id. These
exemptions were intended to be applied only to “casual” babysitters and
“companions” or “elder sitters” for the elderly or infirm. § 7(b)(3); 119 Cong. Rec.
1 Domestic service employees who resided with their employers were alsoexempted from the FLSA’s overtime’s provisions. 1974 Amendments, § 7(b)(4),88 Stat. 62 (codified as amended at 29 U.S.C. § 213(b)(21) (2014)).
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S24801 (July 19, 1973) (statement of Sen. Burdick). The Senate Committee on
Labor and Public Welfare and House of Representatives Committee on Education
and Labor Reports made explicit that “[i]t is the intent of the committee to include
within the coverage of the Act all employees whose vocation is domestic service. .
. . People who will be employed in the excluded categories are not regular bread-
winners or responsible for their families’ support.” H.R. Rep. No. 93-913, at 36
(1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2837; S. Rep. No. 93-690, at 20
(1974).
In other words, professional nannies were covered by the 1974
Amendments. Occasional teenage babysitters were not. Similarly, professional
companions to the elderly or infirm were covered, while caregivers providing
services on an incidental basis were not. The 1974 Amendments, however, must
be viewed in the context of the 1970’s, when “individuals who had significant care
needs went into institutional settings.” Application of the Fair Labor Standards
Act to Domestic Service, 78 Fed. Reg. 60,454, 60,458 (Oct. 1, 2013) (codified at
29 C.F.R. Part 552); Boris & Klein, Organizing Home Care, supra, at 95
(describing how “an extraordinarily high percentage of elders were
institutionalized” in Oregon after 1965); see also Boris & Klein, “Making Home
Care: Law and Social Policy in the U.S. Welfare State,” in Intimate Labors:
Cultures, Technologies, and the Politics of Care (Eileen Boris & Rhacel Salazar
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Parrenas eds., 2010) ; Eileen Boris & Jennifer Klein, Caring for America: Home
Health Workers in the Shadow of the Welfare State ch. 5 (2012). Anyone needing
more than the casual care envisioned by section 7(b)(3) of the 1974 Amendments
would likely have been in an institution, cared for by workers who were already
protected by FLSA following the 1966 Amendments.
That is no longer the case, as a result of a cultural shift away from
institutionalization; many individuals in need of constant care remain at home.
The DOL recognized that the 1974 rules need greater clarification to reflect the
realities of a changing workforce. See Application of the Fair Labor Standards Act
to Domestic Service, 66 Fed. Reg. 5,481, 5,484 (January 19, 2001) (“[b]ecause
many individuals who were formerly institutionalized or moved to nursing homes
are able, with assistance, to stay in their homes, home care providers have taken on
a broader range of medically-related duties.”).
In 1975, the Department of Labor issued additional regulations in an
unsuccessful effort to clarify what it meant by “casual” babysitter and companion
worker. Application of the Fair Labor Standards Act to Domestic Service, 40 Fed.
Reg. 7404 (Feb. 20, 1975) (codified as amended at 29 C.F.R. Part 552). These
regulations never provided a satisfactory task-based distinction between domestic
service workers and companion workers. The Department defined
“companionship services” as the provision of “fellowship, care, and protection for
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a person who, because of advanced age or physical or mental infirmity, cannot care
for his or her own needs.” 40 Fed. Reg. 7,404, 7,405 (codified as amended at 29
C.F.R. § 552.2-552.6). Companionship services could include meal preparation,
bed making, laundry, and “the performance of general household work” if it did
not include more than 20% of total weekly hours, id., — the very work typically
performed by the domestic services workers and full-time nannies that the 1974
Amendments were intended to bring within FLSA’s coverage.
The more useful line between those who were intended to be covered by
wage protections and those who were not is found in the relevant House and
Senate Committees reports, which distinguished between “employees whose
vocation is domestic service” and those who are “not regular bread-winners or
responsible for their families’ support.” H.R. Rep. No. 93-913, at 36 (1974); S.
Rep. No. 93-690, at 20 (1974). At the time, Congress saw this distinction as
coinciding with the distinction between companion workers employed in
institutions and those employed in private homes.
Confusion about who should remain beyond the statute’s reach is echoed in
the Department of Labor’s indecision in 1974 regarding whether wage and hour
protections applied to domestic companionship services workers employed by third
parties. The Department’s initial proposal was that the wage and hour exemptions
could not be applied to companion workers employed by an agency or employer
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other than the family or household using their services. Employment of Domestic
Service Employees, 39 Fed. Reg. 35,382-85 (proposed Oct. 1, 1974). Seeking
placement in a home through an agency (rather than an informal social
recommendation) certainly suggested that a worker’s vocation was domestic
service and therefore that FLSA protections should apply. However, the final rule
was that all companion workers were exempt, regardless of who hired them,
because the text of the statute referred to “any employee employed in domestic
service employment to provide companionship services.” Extension to Domestic
Service Employees, 40 Fed. Reg. 7404 (proposed February 20, 1975) (codified as
amended at 29 C.F.R. § 552.109 (2015)).
These rules were criticized for leaving out large numbers of full-time
workers providing long-term care. See, e.g., Dianne Avery & Martha T.
McCluskey, When Caring is Work: Home, Health, and the Invisible Workforce
Introduction, 61 Buff. L. Rev. 253, 257-58 (2013) (summarizing lectures critical of
the rules as “undermin[ing] the viability of home care work as a decent job at a
time when the number of informal caregivers is dwindling and the need for access
to care for the elderly is growing”).
These tensions and contradictions came to a head when the regulations were
challenged in litigation by Evelyn Coke, a long-term care worker. In Long Island
Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007), the Supreme Court upheld the
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regulations and ruled that it was up to the Department to resolve the interpretive
issues. The Court noted that the statute’s text did “not expressly answer the third-
party employment question,” instead “expressly instruct[ing] the agency to work
out the details of th[e] broad definitions” given in the FLSA. Id. at 167.
By the time the Department proposed revisions in 2011, it was clear that the
old regulations, even if lawful, had become untenable, perpetuated historic
discrimination, and were woefully out of date. The 2013 regulations at last bring
the regulatory regime into line with the statutory scheme’s distinction between
casual companions and workers whose vocation is long-term care.
III. THE 2013 REGULATIONS FURTHER THE PURPOSES OF THE
1974 FLSA AMENDMENTS TO EXTEND WAGE PROTECTIONS
TO WORKERS WHO PROVIDE LONG-TERM CARE FOR A
LIVING, WHO REMAIN PRIMARILY WOMEN —
DISPROPORTIONATELY WOMEN OF COLOR.
The Department of Labor’s 2013 regulations further Congress’s intent in its
1966 and 1974 Amendments to rectify sexual and racial discrimination, and to
protect workers trying to support their families. The regulations also bring the
statutory scheme into line with the realities of the home care industry, in which a
professional workforce earns a living and supports families by providing in-home
care to a growing population.
Under the Department’s new rule, effective January 1, 2015, third-party
employers of home care workers could no longer avail themselves of the section
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213(a)(15) wage and hour exemption. Application of the Fair Labor Standards Act
to Domestic Service, 78 Fed. Reg. 60,454 (Oct. 1, 2013) (codified at 29 C.F.R. pt.
552). Accordingly, third-party employers of such workers must pay them
minimum wages and overtime. See 78 Fed. Reg. at 60,557 (codified as amended at
29 C.F.R. § 552.109).
The Department also revised its definition of “companionship services for
the aged and infirm” to mean “to engage the person in social, physical, and mental
activities” and “to be present with the person in his or her home” or to accompany
him or her outside the home. See 78 Fed. Reg. at 60,556-57 (Oct., 1, 2013)
(codified as amended at 29 C.F.R. § 552.6(a)). Care activities like dressing,
grooming, feeding, bathing, toileting, and transferring and instrumental activities
of daily living (like meal preparation, driving, and light housework) are included in
exempt work only if they do not exceed 20% of total hours worked. See 78 Fed.
Reg. at 60,556-57 (Oct. 1, 2013) (codified as amended at 29 C.F.R. § 552.6(b)).
Medically related services for the person being care for are not included, and
domestic services for the benefit of other members of the household are not
included. See 78 Fed. Reg. at 60,556-57 (codified as amended at 29 C.F.R. §
552.6(c), (d)). These rules take into account Congress’s intent in 1974 to protect
vocational caregivers, and they reflect the context of today’s care industry.
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A. The 2013 Regulations Apply FLSA to Modern Realities in which a
Large and Growing Client Population is Most Often Cared for at
Home.
Today most long-term care “workers care for clients in private homes,” not
in residential-care institutions. Smith, Aging and Caring in the Home, supra, at
1846 (2007). The change reflects a cultural and legal shift in favor of community-
based care. This shift is inspired by newer laws like the Americans with
Disabilities Act of 1990 and the associated directive that society provide services
to elderly and people with disabilities in their own homes, or otherwise in the
“most integrated setting appropriate.” See Olmstead v. L. C. ex rel. Zimring, 527
U.S. 581 (1999) (quoting 28 C.F.R. §35.130(d) (1998)); for a discussion of
Olmstead ’s impact on home health care, see generally Andrew I. Batavia, A Right
to Personal Assistance Services: “Most Integrated Setting Appropriate”
Requirements and the Independent Living Model of Long-Term Care, 27 Am. J. L.
& Med. 17 (2001).
Accordingly, for long-term care workers employed in homes, the distinction
between workers providing domestic services (covered by FLSA), nursing and
medical care (covered by FLSA), and casual domestic companions (exempt from
FLSA) is incoherent. Companion workers perform strenuous work, including
bathing and dressing individuals, administering medication, and providing other
care, such as feeding and assistance with toileting. Such work “was previously
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almost exclusively provided in hospitals, nursing homes, or other institutional
settings and by trained nurses. This work is far more skilled and professional than
that of someone performing ‘elder sitting.’” Application of the Fair Labor
Standards Act to Domestic Service, 78 Fed. Reg. 60,454, 60,458 (Oct. 1, 2013)
(codified at 29 C.F.R. pt. 552).
In addition to becoming more professionalized, the home care sector has
grown and continues to burgeon. The population of the U.S. aged 65 and over has
grown significantly, from 8.1% of the total population in 1950 to 12.8% in 2009.
Laura B. Shrestha, Congressional Research Service, The Changing Demographic
Profile of the United States 13 (2006), available at
https://www.fas.org/sgp/crs/misc/RL32701.pdf (last visited Feb. 23, 2015). It is
expected to grow to 20.2% in 2050. Id. As a result, “the expanding need for long-
term care has transformed home care into one of the fastest growing occupations in
the country.” Smith, Aging and Caring in the Home, supra, at 1846. Personal care
aides are projected to have the fastest employment growth rate in the United States.
National Council of La Raza, Hispanic Home Care Workers 1, 3, Monthly Latino
Employment Report (July 8, 2013) (citing U.S. Bureau of Labor Statistics,
“Employed persons by detailed occupation, sex, race, and Hispanic or Latino
ethnicity, 2012 Annual Averages,” Current Population Survey,
http://www.bls.gov/cps/cpsaat11.htm). The Department’s 2013 regulations
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appropriately recognize that Congress in 1974 could not have intended to deprive
the basic protections of the FLSA from a large and professional workforce whose
services will be even more critically needed in the decades to come.
B. The 2013 Regulations Were Intended to Remedy Racial and Gender
Bias and Cover Home Care Workers, Who Remain
Disproportionately Minority, Low-Income Women Who Provide
Long-Term Care for a Living.
Caregiving jobs have been and continue to be held predominantly by
women, with women of color and women from marginalized immigrant groups
disproportionately represented. Scott Martelle, Confronting the Gloves-Off
Economy 15 (Annette Bernhardt et al. eds., 2009), available at
http://nelp.3cdn.net/0f16d12cb9c05e6aa4_bvm6i2w2o.pdf. Indeed, the home
health care workers covered by the Department of Labor’s regulation remain the
overwhelmingly female, disproportionately minority workforce that was intended
to be brought into the labor laws’ purview by the 1974 Amendments. According to
U.S. Census Bureau data, 88% of home care workers are women; 30% of these
women are African American and 20% are Hispanic.2
2 “Home care workers” are defined here as people in the occupations “personal
care aides” and “nursing, psychiatric and home health aides” working in the “homehealth care services” or “individual and family services” industries. Nat’l Women’sLaw Center calculations based on U.S. Census Bureau, 2013 AmericanCommunity Survey, analyzed using Steven Ruggles et al., Integrated Public Use
Microdata Series: Version 5.0 [Machine-readable database] (Minneapolis: Univ. ofMinnesota, 2010). Similarly, a 2011 study found that home health aides are 95%women, 34% African American, 14.5% immigrants. Galina Khatustsky, et al.,
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Home care workers continue to be low-income. When the Department
promulgated its 2013 rule, home care workers who are primary earners for their
families continued to struggle to survive on median annual wages of less than
$22,000 for full-time work, below the Federal Poverty Guideline for a family of
four. See U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational
Employment & Wages, May 2013, 31-1011: Home Health Aides,
http://www.bls.gov/oes/current/oes311011.htm (reporting median annual wages of
$21,020), and 39-9021: Personal Care Aides,
http://www.bls.gov/oes/current/oes399021.htm (reporting median annual wages of
$20,100); U.S. Dep’t of Health & Human Services, 2013 Federal Poverty
Guidelines, http://aspe.hhs.gov/poverty/13poverty.cfm. Nearly one-third of women
in the home care workforce are raising children, and 23% live below the poverty
line. Nat’l Women’s Law Ctr. calculations based on U.S. Census Bureau, 2013
American Community Survey, supra note 2.
Wages for personal care aides and home care aides have remained stagnant,
even as revenues in the for-profit care industry have doubled in the last 30 years.
U.S. Dep’t of Health and Human Services, Understanding Direct Care Workers: ASnapshot of Two of America’s Most Important Jobs 4 (2011), available athttp://aspe.hhs.gov/daltcp/reports/2011/CNAchart.pdf. According to a 2013 report,the home care workforce employs 227,000 Latinos. 21.2% of personal care aidesare Latino. Nat’l Council of La Raza, Hispanic Home Care Workers, supra, at 2.
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Nat’l Council of La Raza, Hispanic Home Care Workers 3, Monthly Latino Emp’t
Rep. (July 8, 2013), available at
http://www.nclr.org/images/uploads/publications/july2013_employmentreport_ho
mecareworkers.pdf (citing Paraprofessional Healthcare Institute, Who are Direct-
Care Workers? Facts no. 3, at 3 (Feb. 2011), available at
www.directcareclearinghouse.org/download/NCDCW%20Fact%20Sheet-1.pdf 3.
Despite performing stressful and physically demanding jobs requiring specialized
skills, these workers have not been protected by the federal minimum wage and
overtime laws available to other workers.
Long-term care workers struggle to retain decent housing and financial
stability on low wages. One account describes a caregiver’s fight to stay in her
home and explains:
Poor black women like [the woman featured] have long cared for theelderly, ill, and disabled – whether in their own homes or in theresidences of others….Often, it is the best job they can find….Latinasand other recent immigrants make up a third of those who performdaily tasks – bathing bodies, brushing teeth, putting on clothes,cooking meals – that enable people to live decently in their ownhomes.
3 The plight of home care workers in this respect mirrors the problem that women’sconcentration in the low-wage workforce more broadly increased by more than6%between 2007 and 2012. Women make up 2/3 of the low-wage workforce,working in jobs that typically pay $10.10 per hour or less. National Women’s LawCtr.,Underpaid & Overloaded: Women in Low-Wage Jobs 1 (2014), available athttp://www.nwlc.org/sites/default/files/pdfs/final_nwlc_lowwagereport2014.pdf.
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Eileen Boris & Jennifer Klein, Frontline Caregivers: Still Struggling, Dissent vol.
59, no. 1, 46, 46 (Winter 2012).
The gender stereotypes that formed the basis for the original exclusion of
domestic work from labor protections, such as that women work for pin money,
H.R. Rep. 93-913, at 34, are inaccurate and anachronistic. Most families rely on
women for critical household income and depend on that money to keep the family
afloat. Sarah Jane Glynn, The New Breadwinners: 2010 Update 3, Center for
American Progress(April 2012), http://cdn.americanprogress.org/wp-
content/uploads/issues/ 2012/04/pdf/breadwinners.pdf. In families in the bottom
fifth of income distribution, 70% of working wives earn as much or more than their
husbands. Id.
Women’s roles as breadwinners are even more pronounced among home
care workers. 81% of home care workers are primary earners for their families,
according to one survey in New York City survey. 76 Fed. Reg. No. 81,190,
81,197 (Dec. 27, 2011) (citing Lenora Gilbert, Home Care Workers: The New York
City Experience, Encyclopedia of Occupational Safety and Health, vol. 3 (4th ed.
International Labor Organization 1998). Thus, moving home care workers from
the category of “casual” elder-sitters to the formal protections accorded
breadwinners was entirely appropriate and based in the empirical reality of the
home care workforce.
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**************************************
The stubborn persistence of long-term care workers’ exclusion from the
labor protections enjoyed by most workers has been based upon the now-
discredited “presumption that the intimate labor of caregiving should be the loving
and unpaid duty of wives, mothers, and daughters.” Boris & Klein, Frontline
Caregivers, supra, at 47. As with other domestic work, this
paradox hinges heavily on the gendered construction of the work and itslocation within the private home. Domestic service is devalued and
undervalued because of its close association with women’s unpaid work inthe home. Regarded as women’s work, domestic service suffers from the perception that its successful performance depends not on skill but on awoman's innate ability.
Peggie R. Smith, Work Like Any Other, Work Like No Other: Establishing Decent
Work for Domestic Workers, 15 Emp. Rts. & Emp Pol’y J. 159, 161 (2011).
The Department’s 2013 regulations extending these protections to a field
dominated by low-income women will help those women lift their families out of
poverty, reduce the persistent pay disparities between men and women, and help
women who work full-time avoid needing public assistance.
CONCLUSION
In 2013, the Department of Labor took action to ensure that the FLSA
protected workers who had been previously excluded under the statute, either
inadvertently or by design. These regulations properly recognize that the intent of
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the 1974 FLSA Amendments would be better effectuated through regulations
covering all domestic service workers employed by third-party employers. The
2013 regulations are not isolated standards. They are part of an effort more than
forty years in the making to close loopholes in the FLSA that either inadvertently
or purposefully excluded full-time, breadwinning domestic care workers whom
Congress repeatedly attempted to include. The Court should therefore reverse the
judgment of the District Court invalidating the regulations.
Respectfully submitted,
Ariela MigdalLenora LapidusAmerican Civil Liberties UnionFoundationWomen’s Rights Project125 Broad Street, 18th Floor
New York, NY 10004Tel. (212) [email protected]
Penny M. VenetisChristina Brandt-YoungLegal Momentum5 Hanover Square Ste. 1502
New York, NY 10004Tel. (212) [email protected]
/s/ Arthur B. SpitzerArthur B. SpitzerAmerican Civil Liberties Union
of the Nation's Capital4301 Connecticut Avenue, N.W.,Suite 434Washington, D.C. 20008Tel. (202) [email protected]
Counsel for Amici Curiae
February 27, 2015
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INTERESTS OF AMICI CURIAE
Amici are women’s rights, civil rights, and human rights organizations and
scholars who have advocated for equality of treatment and dignity for women
workers and for the employment rights of immigrants and people of color. Amici
support the Department of Labor’s regulations because they remedy a historic
wrong — the exclusion of predominantly low-income, minority women domestic
long-term care workers from the basic labor protections that other workers take for
granted. Many of amici submitted comments in support of the regulations at issue
in this case. Individual statements of the interests of amici can be found below.
The American Civil Liberties Union (ACLU) is a nationwide, nonprofit,
nonpartisan organization with more than a million members, activists, and
supporters dedicated to the principles of liberty and equality embodied in the
Constitution and our nation’s civil rights laws. The ACLU of the Nation’s Capital
is the Washington, D.C., affiliate of the ACLU. Through its Women’s Rights
Project, Washington Legislative Office, and affiliates, the ACLU has long been a
leader in legal advocacy aimed at ensuring women’s full equality and ending
discrimination against women in the workplace, with a particular focus on
discrimination that affects low-income women of color and immigrant women
workers. The ACLU submitted comments and related advocacy in support of the
long-term care regulations at issue in this case.
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Legal Momentum advances the rights of women